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Lovell v Smith (1857) 3 CBNS 120; 140 ER 685; (1857) 22 JP 787

EASEMENT, RIGHT OF WAY, ABANDONMENT, EXTINGUISHMENT OF EASEMENT, NON-USER, RELEASE OF EASEMENT,

AGREEMENT WITH OCCUPIER

Facts

In 1803, the plaintiff became an occupier of a cottage. The defendant’s farm was between the plaintiff’s cottage and the village. In 1820, W became the owner of the farm and occupied it until 1824. In 1824, Lovell – the defendant, became the occupier of the farm, while W still owned it. In 1824, by agreement between the defendant and the plaintiff and the assent of W, the direction of the footpath from the cottage through the farm was altered and a new way made over a portion of the defendant’s land. The old footpath then ceased to be used. Thirty years later, the plaintiff claimed a right of way over the original footpath. The plaintiff contended that he was entitled to use both the old and new footpath, by virtue of 20 years’ user or prescription. The defendant argued that there was no evidence to support the claim to the old way by prescription, because the user of it had become impossible due to acts of the owners of the land, acquiesced in by the plaintiff. The jury returned a decision in favour of the defendant.

Issue

Was the non-user of the original way sufficient to demonstrate that the plaintiff had abandoned it and therefore, was not entitled to claim a right of way over it?

Held

The decision was in favour of the plaintiff.

(1) The mere non-user of the original way was no evidence of its abandonment thereof.

(2) There can only be an abandonment of a prescriptive easement if there is a deed or evidence from which the jury can presume a release of it.


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